Milo v. Nuske

• Citation: 66 S.W. 544
• Parties: MILO et al. v. NUSKE et al.
• Decision Date: 17 February 1902
• Court: Texas Supreme Court

Page 544

66 S.W. 544

MILO et al. v. NUSKE et al.

Supreme Court of Texas.

February 17, 1902.

Certified question from court of civil appeals of First supreme judicial district.

Proceedings for the allowance of a claim by Anna Nuske and others against the estate of William Milo. Upon the protest of Emma Milo and others, the claims were disallowed

by the county court, and claimants appealed to the district court, where the appeal was dismissed. On certified questions to the court of civil appeals. Affirmed.

H. Paul Georgi, E. P. Turner, and W. C. Henderson, for appellants. Tompkins & McDade, for appellees.

WILLIAMS, J.

The court of civil appeals for the First district certifies for decision the following case:

"The appellants, having a claim against the estate of William Milo, deceased, which estate was being administered in the county court of Waller county, presented said claim to the administrator, who allowed same; and it was filed in the county court on July 18, 1900, for approval by the county judge. Appellees, who are interested in said estate, filed a protest against the approval of said claim; and upon a hearing by the county judge on the 4th day of October, 1900, the claim as to one of appellants was wholly rejected, and was approved only in part in favor of the other appellants. On the 6th of October, 1900, appellants filed a motion for a new trial in the county court, which motion was heard and overruled by the county judge on October 11, 1900. The appellants, at the time their motion for a new trial was overruled, gave notice of appeal to the district court, and on the 26th day of October filed in the county court their appeal bond, conditioned as required by law, which bond was duly approved by the clerk of said county court. The appellees filed a motion in the district court to dismiss the appeal on the ground that the appeal bond, not having been filed within 15 days from the original entry of the order appealed from, was not filed within the time prescribed by law. This motion was sustained by the district court, and the appeal dismissed.

"We respectfully certify for your decision the question as to whether or not, upon the facts above stated, the district court erred in holding that the appeal bond was not filed within the time prescribed by the statute, and in dismissing the appeal."

Article 2255, Rev. St., provides: "Any person who may consider himself aggrieved by any decision, order, decree or judgment of the county court shall have the right to appeal therefrom to the district court of the county upon complying with the provisions of this chapter." The party appealing is required by articles 2256 and 2258 to file his bond or affidavit within 15 days "after such decision," etc., "shall have been rendered." Under former decisions of this court, it must be held that the time runs from the order to be appealed from, and not from the order overruling motion for new trial. The statute allowing writs of error from the district court to the court of civil appeals limits the right to twelve months "after the final judgment is rendered." In Cooper v. Yoakun, 91 Tex. 392, 43 S. W. 871, the question was presented whether or not this time runs from the date of the main judgment, or from the date of the order overruling motion for new trial; and it was held that the former date controlled. Quoting from Waterhouse v. Love, 23 Tex. 560, the court said: "The language is too plain to be mistaken. It bars the remedy at the expiration of two years from the rendition of judgment. The rendition of judgment is an independent fact, distinct from the adjournment of court, from other proceedings at the term, and in the same case; and it is from the happening of this fact that the two years are to be computed." The...